584, and June 18, 1910, 36 Stat. 539), do not include the power to require carriers to provide and furnish oil tank cars, no question of discrimination being involved.

Without attempting to define the measure of the carrier's duty to satisfy the needs of shippers by adding in quantity or kind to its car equipment, held that neither by the Act of 1887 nor the amendatory Act of 1906 did Congress intend that the enforcement of such duty might be compelled by orders of the Interstate Commerce Commission.

In reaching this conclusion, much weight is properly attached to the fact that it accords both with the construction placed by the Commission upon the Act of 1887 before the Act of 1906 was adopted and also with the explanation which the Commission made to Congress concerning the occasion and scope of the Act of 1906 when that statute was in process of enactment.

In construing the amendment of 1906, the fact that, as here involved, it was drawn and recommended by the Commission justifies in this case the assumption that, in legal import, it was not intended to exceed the Commission's recommendation.

The neglect or refusal to furnish tank cars is not a "practice" within the meaning of § 15 of the Commerce Act, as amended June 18, 1910.

When a carrier, in its published tariffs, denies any obligation to furnish tank cars, the fact that it publishes rates for commodities so carried may not be construed as an offer, constituting a duty, to furnish such cars, and a finding by the Commission to the contrary is reviewable as a conclusion of law.

Whether the order of the Commission was invalid because requiring the Railroad Company to supply cars for movement over other lines, or because of being nonadministrative, or uncertain and indefinite, not decided.

abstain, from refusing upon reasonable request and reasonable notice therefor to provide and furnish tank cars to the complainants herein for interstate shipments of petroleum products, which refusal has been found in said report to be in violation of the provisions of the act to regulate commerce and amendments thereto."

"It is further ordered that said defendant be, and it is hereby, notified and required to provide, on or before August 15, 1915, and thereafter to furnish, upon reasonable request and reasonable notice at complainants' respective refineries, tank cars in sufficient number to transport said complainants' normal shipments in interstate commerce."

"And it is further ordered that this order shall continue in force for a period of not less than two years from the date when it shall take effect."

The time of compliance was subsequently extended to November 15, 1915, on which date the railroad company brought this suit to enjoin the enforcement of the order. A preliminary injunction was prayed, and, upon a hearing by three judges, was granted. 227 F. 911. To review that action, this appeal is prosecuted.

The Commission made quite elaborate findings, which, however, we do not think it is necessary to quote in full. It found the production of the oil companies, and the following additional facts:

(1) That 91% of the oil produced by the Paraffin Company was shipped in tanks, 1 1/2% in barrels loaded in cars other than tank cars, and 7 1/2% in pipelines, while of the shipments made by the other company 86.8% moved in tank cars, 4.7% in barrels and 8.5% in pipelines.

(2) For a long time, the bulk of refined oil in the United States has been shipped in tank cars, and at present 91% is so transported. The railroad has been using tank cars for twenty-five years. The capacity of the cars is found, and they are so constructed that they may be rapidly

loaded at the refineries, and jobbers and dealers in refined oil throughout the country have the proper and necessary facilities for unloading the cars by gravity at their various stations.

(3) The only other method of transporting oil is in barrels or similar containers, the cost of which is from 3 1/2 to 3 3/4 cents a gallon above the cost of transportation in tank cars, and this makes such method of transportation practically prohibitive, and the refusal of the railroad to furnish an adequate supply of tank cars would tend to drive out of business refiners who are unable to supply themselves with enough cars to move their own products, and witnesses for the railroad admitted that tank cars are an economic necessity for the transportation of refined products.

(4) In 1887, the railroad acquired 1,308 tank cars, some of which have since been sold to independent refiners, but it owned at the time of the hearing 499 cars, of which 482 are furnished to shippers of oil located on its lines.

(5) At the time of the hearing, the Paraffin Company owned 54 tank cars and the Crew-Levick Company 57, and it was testified that these companies for five or six-years have daily made inquiry for the delivery of cars to them, and that formal orders for cars have been constantly on file in the railroad's offices.

(6) On November 11, 1912, shortly before the filing of the complaints before the Commission, complainants served notice upon the railroad company, requesting it to furnish a sufficient number of tank cars to ship respectively 450,000 gallons of oil per month from the Paraffin Company's refinery at Titusville, and 600,000 gallons per month from the Glade (Crew-Levick Co.) Oil Works at Warren.

to increase its present tank car equipment, but is prepared to transport the commodities in question when properly contained in barrels or other similar retainers at rates that are fair, reasonable, and nondiscriminatory. "

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